USA v. Jones et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
v. 	Case No. 24-20070-DDC
NEWTON JONES (01),
WILLIAM CREEDEN (02),
KATERYNA JONES (03),
LAWRENCE MCMANAMON (05),
Defendants.
MEMORANDUM AND ORDER
Defendant William Creeden asks the court to compel the government to secure and then
disclose records from the Federal Deposit Insurance Corporation (FDIC). Doc. 284. Creeden
contends these records are favorable and material to his defense, going “to the core” of the
government’s charges referencing the Bank of Labor. Id. at 3. He explains that the FDIC
examined the Bank of Labor during the Indictment period. Id. at 5. In those examinations,
Creeden continues, the FDIC never identified any issues with the compensation arrangements
that undergird the government’s Bank of Labor charges.1 Id. So, Brady requires disclosure, he
concludes. Id. at 3; see Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of
1 	Creeden identifies the implicated Bank of Labor charges to include: Count 48 (Embezzlement
from a Labor Organization and Unauthorized Loans under 29 U.S.C. § 501(c)); Count 53 (Wire Fraud
Conspiracy under 18 U.S.C. §§ 1343, 1349); Counts 54, 55, 56, & 57 (Theft from an ERISA Program and
Retirement Benefits for Ineligible Individuals under 18 U.S.C. § 664); and Count 1 (RICO Conspiracy
under 18 U.S.C. § 1962(d))—which incorporates all of the preceding conduct. Doc. 284 at 4; see also
Doc. 1 at 11–26, 44, 51–55, 56–57 (Indictment).
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the prosecution.”). But, when Creeden demanded production from the government, it refused.
Doc. 284 at 6.
The government told Creeden that it didn’t possess any additional FDIC reports—outside
those it already had provided in discovery. Doc. 284-2 at 1 (Def. Ex. B) (government’s response
to Creeden’s demand letter). And it denied any obligation to secure them for a number of
reasons—the FDIC: isn’t part of the prosecution team; didn’t participate in a joint investigation;
never played an active role in the prosecution; has no member assisting with the prosecution; and
hasn’t instituted parallel proceedings. Id. The government asserted the same position when it
responded to Creeden’s Motion to Compel (Doc. 284)—it doesn’t possess the requested
documents and has no duty to acquire them. Doc. 299 at 4–6. The government explained that
the FDIC had performed “solely civil and administrative functions” when creating the reports
and had “played no role in the government’s criminal investigation.” Id. at 5. So, the
government argues, the court should deny Creeden’s motion.
Start with Creeden’s legal hook for the documents: Brady. “The essence of the Brady
rule is the proposition that nondisclosure of material exculpatory evidence violates a defendant’s
due process right to a fair trial.” Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d 801, 823 (10th
Cir. 1995). “Brady acknowledges ‘that the prosecutor’s role transcends that of an adversary’
because the prosecutor, acting as the representative of the sovereign, has an obligation to ensure
‘not that it shall win a case, but that justice shall be done.’” Id. (quoting United States v.
Bagley, 473 U.S. 667, 675 n.6 (1985)). The government commits a Brady violation when it
withholds evidence that is favorable to a defendant and “the evidence is material either to guilt or
to punishment[.]” Brady, 373 U.S. at 87. “Evidence favorable to the defense encompasses
exculpatory evidence, which tends to establish a criminal defendant’s innocence. It also
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encompasses impeachment evidence, used to undermine a witness’s credibility, for ‘if disclosed
and used effectively,’ such evidence ‘may make the difference between conviction and
acquittal.’” Fontenot v. Crow, 4 F.4th 982, 1066–67 (10th Cir. 2021) (quotation cleaned up)
(quoting Bagley, 473 U.S. at 676). “Evidence is material if there is a reasonable probability that,
had the evidence been disclosed, the result of the proceeding would have been different.”
Browning v. Trammell, 717 F.3d 1092, 1094 (10th Cir. 2013) (quotation cleaned up).
Brady imposes an obligation beyond the prosecutors themselves. “[F]or Brady
purposes—the ‘prosecution’ includes ‘not only the individual prosecutor handling the case, but
also . . . the prosecutor’s entire office, as well as law enforcement personnel and other arms of
the state involved in investigative aspects of a particular criminal venture.’” McCormick v.
Parker, 821 F.3d 1240, 1247 (10th Cir. 2016) (quoting Smith, 50 F.3d at 824). The Supreme
Court has held that an “individual prosecutor has a duty to learn of any favorable evidence
known to the others acting on the government’s behalf in the case, including the police.” Kyles
v. Whitley, 514 U.S. 419, 437 (1995).
Here, the parties don’t dispute whether the at-issue FDIC records are favorable or
material. Instead, they argue about the prosecution’s possession and duty to search. Start with
Creeden’s possession arguments: He contends, first, that the FDIC is part of the prosecution
team because it “reviewed the same governance and compensation practices now charged, and
generated the primary regulatory record of that conduct.” Doc. 284 at 12. So, Creeden asserts
what he calls the “prosecution-team doctrine.” Creeden reasons that given this doctrine, the
prosecution possesses the requested records. Id. Second, he argues that the government has
constructive possession of the FDIC records at issue because the government has knowledge of
and access to the evidence, as demonstrated by their evidentiary production and trial exhibit list.
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Id. at 13–14. Finally, consider Creeden’s duty-to-search argument: He contends that “even if
the Government lack[s] possession, Brady required it to look.” Id. at 15. He premises this duty-
to-search argument on United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992). Id. at 16.
Brooks, he argues, requires prosecutors to “diligently inquire into the files of agencies ‘closely
aligned with the prosecution.’” Id. at 15–16 (quoting Brooks, 966 F.2d at 1503). In short,
Creeden asserts three motion-to-compel theories. The first two—the prosecution-team theory
and the constructive-possession theory—he premises on the government’s purported possession
of the requested files. The third theory—under Brooks—argues that the government has a duty
to search for the requested documents and then disclose them.
In response, the government reports that it already has “delivered all the records in its
possession from the FDIC to defendants in discovery.” Doc. 299 at 4. And the government
represents that it doesn’t possess the files Creeden now seeks. Id. Nor, the government argues,
do they have a duty to secure them. Id. at 5. They are relieved of that duty, it contends, because
the FDIC wasn’t closely aligned with the prosecution in this case. Instead, the government
asserts, the FDIC “performed solely civil and administrative functions” thus playing “no role in
the government’s criminal investigation.” Id.
The way the government describes the FDIC’s involvement in this case is dispositive of
all three of Creeden’s motion-to-compel theories. Here’s why. The government asserts that the
FDIC neither investigated this criminal case nor engaged with or aided the prosecution. And all
three purportedly independent doctrines in Creeden’s motion apply only when the federal agency
at issue has worked in tandem with the prosecutor in some fashion—by investigating the case,
aligning itself with the prosecution, or otherwise acting on the government’s behalf, as explained
next.
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Start with the prosecution-team theory. McCormick makes clear that the prosecution
team may extend to include other arms of the state, but only where those arms were “involved in
investigative aspects of a particular criminal venture.” 821 F.3d at 1247 (emphasis added).
Next take constructive possession. The cases Creeden cites to assert his constructive-
possession theory impose a similar agency-involvement requirement. First, Creeden invokes
United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989). Doc. 284 at 14. He argues that under
Bryan “[c]onstructive possession arises when the prosecution has ‘knowledge of and access to’
the evidence.” Id. (quoting 868 F.2d at 1036). But a more fulsome quotation from Bryan reveals
that constructive possession—like the prosecution-team theory—imposes a threshold
requirement of agency involvement in the same investigation.
[T]he scope of the government’s obligation under Rule 16(a)(1)(C) should turn on
the extent to which the prosecutor has knowledge of and access to the documents
sought by the defendant in each case. 	The prosecutor will be deemed to have
knowledge of and access to anything in the possession, custody or control of any
federal agency participating in the same investigation of the defendant.
Bryan, 868 F.2d at 1036 (emphasis added) (quotation cleaned up). Later in his argument,
Creeden cites Kyles for the proposition that when “the prosecution knows that a body of relevant
evidence exists and can obtain it through routine inquiry, the law treats that evidence as
constructively possessed.” Doc. 284 at 15. But Kyles, too, imposes an agency-involvement
requirement, this time using the phrase “the others acting on the government’s behalf in the
case[.]” See 514 U.S. at 437 (“[T]he individual prosecutor has a duty to learn of any favorable
evidence known to the others acting on the government’s behalf in the case, including the
police.”).2
2 	Creeden also cites United States v. Brooks, 966 F.2d 1500, when arguing for constructive
possession. Doc. 284 at 14. The court doesn’t explore the agency-involvement requirement in Brooks
under the constructive-possession theory, however. That’s because the court takes up Brooks when
discussing Creeden’s third theory—a duty to search—in the next paragraph.
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Finally, consider Creeden’s duty-to-search theory. He leans heavily into Brooks,
contending that Brooks “is the leading case representing the national rule” that prosecutors have
a duty to inquire. Doc. 284 at 16. But Brooks also qualifies this duty with an agency-
involvement requirement. 966 F.2d at 1503 (“The cases finding a duty to search have involved
files maintained by branches of government closely aligned with the prosecution[.]” (emphasis
added) (quotation cleaned up)). Indeed, Brooks explained that the “close working relationship”
between the police department and the U.S. Attorney—a relationship that was “obviously at
work in [the Brooks] prosecution”—triggered the duty to search. Id. Courts in our Circuit
concur. See United States v. Ortiz-Ortiz, No. 22-cr-1975 JCH, 2023 WL 5401122, at *3 (D.N.M.
Aug. 22, 2023) (“Brady is nonetheless interpreted broadly to encourage prosecutors to carry out
their duty to learn of favorable evidence known to others acting on the government’s behalf in
the case, including the police.” (emphasis added)); id. (“[T]he government has no affirmative
duty under Brady to seek out information that is not in its or its agents’ possession[.]”).
In sum, all three of Creeden’s motion-to-compel theories require a threshold level of
involvement by the agency at issue—here, the FDIC. So, all three theories fail if Creeden can’t
demonstrate the requisite FDIC involvement with the investigation or prosecution of this case.
The Tenth Circuit has provided a helpful guide for assessing the requisite involvement in
McCormick.
There, McCormick asserted that he was entitled to habeas relief after a jury found him
guilty of child sexual abuse and child abuse. McCormick, 821 F.3d at 1246. He contended that
the prosecution had violated Brady by failing to disclose a key prosecution witness’s lack of
certification—that of the sexual assault nurse examiner (SANE nurse). Id. at 1242. The SANE
nurse had provided the only independent evidence at trial to corroborate the child-victim’s sexual
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assault allegations. Id. at 1244. And it later came to light that her testimony, i.e., that she was
certified in Texas as a SANE nurse, was false. Id. To evaluate the alleged Brady violation, our
Circuit considered whether the SANE nurse was part of the prosecution team such that the
Circuit could impute her own knowledge of her uncertified status to the prosecution. The Circuit
concluded that she was a member of the prosecution team because the SANE nurse had
“examined [the child-victim] at the behest of law enforcement as part of a criminal investigation
into [the child-victim’s] allegation that McCormick sexually abused her.” Id. at 1247 (quotation
cleaned up). And, the Circuit noted, the SANE nurse “explicitly testified that she kept a record
of the exam to prepare herself to testify later.” Id. In finding the nurse a part of the prosecution
team, the Circuit emphasized that “she acted at the request of law enforcement in the pre-arrest
investigation of a crime.” Id. at 1248.
Here, the FDIC played no such criminal investigative role in the charges that are related
to the Bank of Labor. The government explains that the FDIC documents that Creeden seeks
flowed from the FDIC’s Division of Risk Management Supervision (FDIC-RMS). Doc. 299 at
3. According to the government’s Response, the FDIC-RMS “is responsible, in part, for
examining and recommending courses of action for FDIC-insured banks.” Id. It examined the
Bank of Labor solely in that risk-management capacity—not as part of a criminal investigation
or at the behest of law enforcement. Id. In other words, the FDIC-RMS didn’t investigate a
crime, as the SANE nurse had in McCormick. Nor did it play any other role in the government’s
criminal investigation, the government reports. Id. Instead, the government explains, “the
FDIC-RMS performed solely civil and administrative functions.” Id. at 5. No joint investigation
or parallel proceedings involved the FDIC in the prosecution’s work here. Id. And no member
of the FDIC assisted with the prosecution of this case. Id.
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Defendant Creeden’s Reply never contests the government’s representations about the
level and nature of FDIC’s involvement in this case. See generally Doc. 307. Instead, he
contends the government never cites Brooks and never addresses his independent duty-to-inquire
theory. Id. at 7. And he argues that Brooks, unlike the prosecution-team doctrine, establishes “a
freestanding obligation” not tied to “institutional labels.” Id. (quotation cleaned up). But that’s
not right. The court already has recited how Brooks similarly requires an agency’s close
alignment with the prosecution to trigger a duty to search. The absence of such an alignment is
dispositive here. Besides, the government’s Response quotes a case that quotes Brooks—so its
seeming unresponsiveness is a matter of form, not substance. See Doc. 299 at 5 (“To this end,
‘[a] prosecutor may have a duty to search files maintained by other “governmental agencies
closely aligned with the prosecution[.]”’” (emphasis in original) (quoting United States v.
Burton, 81 F. Supp. 3d 1229, 1249 (D.N.M. 2015) (quoting United States v. Padilla, No. CR 09-
3598 JB, 2011 WL 1103876, at *7 (D.N.M. 2011) (quoting Brooks, 966 F.2d at 1503)))).
The court concludes that defendant Creeden has failed to demonstrate that FDIC involved
itself “in investigative aspects of [this] particular criminal venture,” McCormick, 821 F.3d at
1247, or “participat[ed] in the same investigation of the defendant[.]” Bryan, 868 F.2d at 1036.
Similarly, he hasn’t demonstrated that the FDIC “act[ed] on the government’s behalf in the
case,” Kyles, 514 U.S. at 437, or “closely aligned with the prosecution,” Brooks, 966 F.2d at
1503 (quotation cleaned up). Without such showing, all three of defendant Creeden’s motion-to-
compel theories fail.
And this result makes sense. To require the prosecution to search and disclose records of
another federal agency without imposing an agency-involvement requirement would hinder
criminal prosecutions significantly. See United States v. Beers, 189 F.3d 1297, 1304 (10th Cir.
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1999) (“‘[T]he imposition of an unlimited duty on a prosecutor to inquire of other offices not
working with the prosecutor’s office on the case in question would inappropriately require us to
adopt a monolithic view of government that would condemn the prosecution of criminal cases to
a state of paralysis.’” (quoting United States v. Avellino, 136 F.3d 249 (2d Cir. 1998))).
IT IS THEREFORE ORDERED BY THE COURT THAT defendant William
Creeden’s Motion to Compel (Doc. 284) is denied.
IT IS SO ORDERED.
Dated this 1st day of May, 2026, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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